What Title requisite in the Positive Prescription.
Subject_3 SECT. VII.
What Title requisite for Thirlage?
John Nicolson v. Feuars of Tillicultry
Date: 14 January 1662 Case No. No 119.
Infeftment in the mill of a barony, with 40 years possession of multures, was sustained as a good title to pursue for abstractions.
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John Nicolson, as baron of the barony of Tillicultry and mill thereof, pursues the feuars of Tillicultry, for a certain quantity of serjeant corns, and for their abstracted multures, for which he had obtained decreet in his baronycourt, which was suspended. The defenders alleged, That his decreet is null, as being in vacance time; 2dly, As being by the baron, who is not competent to decern in multures or thirlage against his vassals; 3dly, The decreet was without probation; the baron neither producing title, nor proving long possession; and as to the serjeant-corn, nothing could constitute that servitude but writ. The charger answered, That barons need no dispensation in vacance, and that baron-courts use to sit in all times, even of vacance, by their constant privilege; and that the baron is competent judge to multures, or any other duty whereof he is in possession. And as to serjeant corn, in satisfaction of his decreet, he hath produced his infeftment as baron of the barony, which gives him right of jurisdiction, and so to have serjeants, whose fees may be constituted, and liquidated by long possession.
The Lords found the reply relevant, the charger having 40 years possession as to the multures, and the pursuer declared he insisted not for the King's feuduties in kind, but for the teind, seed, and horse-corn.
The defenders alleged absolvitor, for as much of the corns as would pay the feu-duties, minister's stipends, and all public burdens, because they behoved to sell corns for satisfying of these, and in so far the corns were not their own, and so they could pay for no more corns than their own, neither could they be liable for dry multure, unless it were constituted by writ; especially seeing the charger libels not upon the defenders infeftment, or bonds of thirlage, but upon his own infeftment, only generally, as infeft in the mill of the barony.
The Lords repelled these allegeances, and sustained the decreet for all the corns except seed, horse-corn, and teind which tholled not fire and water within the thirle. See Thirlage.
